Ontario Court of Justice orders son’s immediate return to father’s care in Texas
The Federal Court upheld the refusal of a mother’s claim for refugee protection in a case where an Ontario court ordered her son’s immediate return to Texas, after she travelled with the child to the border without the father’s consent.
In Faoye v. Canada (Citizenship and Immigration), 2026 FC 191, the applicant was a Nigerian citizen. According to her, she had a secret relationship with a woman from 2009–13, then got together with a man, who harassed her and was violent with her.
In April 2018, the applicant fled from Nigeria to the US on a visitor visa, valid until January 2020. In the US, she had a brief relationship with a man. They had a son, born in Texas in 2020. The child lived with his mother and saw his father on the weekends.
In March 2022, the applicant told the father that she had to go on a short trip to Washington, DC, to renew her Nigerian passport. In Washington, rather than renewing her passport, she booked a flight with her son to Canada without informing the father.
On Apr. 1, 2022, the applicant and her child went to the Canada-US border. She claimed refugee protection based on her fear of persecution by the Nigerian society and authorities due to her sexual orientation as a bisexual woman.
The applicant also sought refugee status for her son, who would allegedly face harm in the US due to his race and sex as a Black male, his parents’ conflict, his potential separation from his mother, his father’s work schedule, and the fact that his father’s current partner had two children.
Authorities detained the applicant while she was attempting to enter Canada. On Apr. 3, 2022, a border officer interviewed her. She admitted that the father did not consent to the trip to Canada with the son. She lied about having sole custody.
During calls with the border officer, the father initially confirmed that he had not agreed to the child entering Canada, but later expressed his consent.
After an argument in June 2022, the applicant blocked the father on her phone and prevented him from contacting the child any further. In August 2022, the father applied for custody in a Texas court.
On Oct. 10, 2022, the Texas court granted the father the right to designate the son’s primary residence in Texas. It ordered the father to transport the child to Ontario, where the applicant could have parenting time on the third weekend of each month, including holidays.
In breach of the Texas order, the applicant took no steps to deliver the son to his father or submit the documents for returning the child to the US.
On Oct. 13, 2022, before the Ontario Court of Justice, the applicant applied for essentially the same relief subject to the Texas court’s adjudication. Her requested relief included primary residence, decision-making responsibility, and child support. She did not mention the Texas proceeding or the resulting order.
In December 2022, in the Ontario proceeding, the father filed a cross-motion and an application under the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, [1983] Can TS No 35. He sought the son’s return to the US.
On Jan. 30, 2023, the Ontario court affirmed the Texas order’s terms regarding parenting time and ordered the child’s immediate return to his father’s care in Texas. It determined that the applicant had acted deceitfully and dishonestly. The next day, the father took custody of his son.
In October 2024, the Refugee Protection Division (RPD) denied the applicant’s refugee protection claim under ss. 96 and 97(1) of the Immigration and Refugee Protection Act, 2001. The RPD considered her excluded from refugee protection.
The RPD saw serious reasons to consider that the applicant had committed child abduction under s. 283(1) of the Criminal Code, 1985, a serious non-political crime under art. 1F(b) of the United Nations’ Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can TS No 6.
In February 2025, the Refugee Appeal Division (RAD) affirmed the RPD decision. The applicant applied for a judicial review of the RAD decision.
The applicant alleged that the RPD did not consider her evidence and circumstances concerning her abusive relationship with the man in Nigeria and her sexual assault at the hands of the son’s father.
Denial of protection upheld
The Federal Court dismissed the judicial review application. It determined that the applicant failed to establish that the RAD decision was unreasonable.
First, the court upheld the RAD’s credibility assessment. The court ruled that the RAD offered a detailed and well-reasoned explanation for its credibility findings, including the reason it gave weight to the Ontario proceeding.
The court noted that the RAD considered the applicant’s explanation for why she fled the US and why she did not disclose the sexual assault during the Ontario proceeding.
Second, the court saw no error in the RAD’s determination that the applicant’s conduct constituted a serious non-political crime, thus excluding her from refugee protection under art. 1(F)(b).
The court held that the RAD properly:
- deemed the events that occurred after the applicant took her child to Canada without consent irrelevant to the exclusion decision under art. 1F(b)
- acknowledged the presumption that child abduction was a serious crime, based on its 10-year maximum imprisonment sentence
- addressed the possibility of rebutting the presumption of seriousness
- considered the relevant factors in Jayasekara v Canada (Citizenship and Immigration), 2008 FCA 404
The court noted that assessing the crime’s seriousness would not include post-offence considerations. The court added that there was no need for the applicant to be charged with or convicted of the offence.
